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Trump Administration’s Safe Third Country Rule Safe Again

By Heather Ham-Warren | September 2019

On Wednesday the Supreme Court handed a major win to the Trump administration by permitting the nationwide enforcement of an asylum rule that has spent the last two months bouncing around the lower courts. The rule, which was fast-tracked by the administration in July, would make migrants ineligible for asylum if they failed to request asylum in a safe third country they had transited on their way to the United States.

The rule was first blocked by Judge Jon Tigar—in the form of a nationwide injunction— immediately after implementation. However, the 9th Circuit Court of Appeals narrowed the California-based judge’s injunction to states within the circuit, permitting the rule to remain in place in Texas and New Mexico while being blocked in California and Arizona.

In reaching their decision, the Court of Appeals panel stated that the organizations challenging the restriction did not present enough evidence to warrant a nationwide injunction. As a result, Judge Tigar said that he interpreted the higher court’s decision as permitting him to re-impose the nationwide injunction should additional evidence be submitted. At the time, the White House responded to the ruling by saying, “Immigration and border security policy cannot be run by any single district court judge who decides to issue a nationwide injunction. This ruling is a gift to human smugglers and traffickers and undermines the rule of law.”

Not to be defeated, the Department of Justice then submitted a “Renewed Emergency Motion” to the 9th Circuit Court of Appeals challenging the lower court’s ruling. After reviewing the motion, the appellate court yet again issued an administrative stay, placing a hold on the injunction issued only the day before. This stay permitted the administration to implement the new policy in New Mexico and Texas while the U.S. Supreme Court considered the administration’s request to weigh in on the new restrictions to ensure unity when considering asylum cases.

Thankfully, the wait was brief; and late Wednesday the Supreme Court undid Judge Tigar’s rulings, thus permitting the new asylum policy to take effect in all states.